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I teach Sustainable Natural Resources Law in the spring. Here's a new publication brought to my attention by Gerd Winter that looks like a great fit for introducing students to the fisheries area. A slightly edited summary of the book courtesy of Gerd appears below:

Towards Sustainable Fisheries Law

As most of the fish resources in the world's oceans are constantly depleting, the development of effective and efficient instruments of fisheries management becomes crucial. Against this background, the IUCNEnvironmental Law Programme proudly presents its latest publication in the IUCN Environmental Policy and Law Paper Series, edited by Gerd Winter, a member of the IUCN Commission on Environmental Law, which focuses on a legal approach towards sustainable and equitable management of fish resources.

This publication is a result of an interdisciplinary endeavour with worldwide participation studying multiple demands on coastal zones and viable solutions for resource use with emphasis on fisheries. The book consists of six case studies including Indonesia, Kenya, Namibia, Brazil, Mexico and the EU, which are preceded by an analysis of the international law requirements concerning fisheries management. The final part of the book summarizes the case studies and proposes a methodology for diagnosing problems in existing management systems and developing proposals for reform.

Towards Sustainable Fisheries Law thus helps the reader to learn more about the international legal regime for fisheries management that is currently in place, improves the understanding of the institutional and legal problems related to fisheries management that countries face at the national level, and provides guidance for sustainable use of fish resources through a "legal clinic" for fisheries management.

The book was published as IUCN Environmental Policy and Law Paper No. 74. Free copies can be ordered at the IUCN office or downloaded (2,05 MB) from the IUCN website at: Toward Sustainable Fisheries Law

Many of us attempt to bring ethical perspectives to bear on issues raised by our classes in addition to ecological and economic perspectives. Although it may be a bit late for those of you who have already started class, here is the most recent statement by the World Council of Churches on eco-justice and ecological debt. In a related, but fascinating, note, the WCC as part of its current programme work on poverty, wealth and ecology is attempting to articulate a consumption and greed line -- in addition to the more typical poverty line. This would provide practical spiritual guidance on when, in Christian terms, too much is too much. Check it out!!!

WCC Statement on eco-justice and ecological debt

02.09.09

The
World Council of Churches (WCC) Central Committee adopted a "Statement
on eco-justice and ecological debt" on Wednesday, 2 Sept. The statement
proposes that Christians have a deep moral obligation to promote
ecological justice by addressing our debts to peoples most affected by
ecological destruction and to the earth itself. The statement addresses
ecological debt and includes hard economic calculations as well as
biblical, spiritual, cultural and social dimensions of indebtedness.

The statement identifies the current unprecedented
ecological crises as being created by humans, caused especially by the
agro-industrial-economic complex and the culture of the North,
characterized by the consumerist lifestyle and the view of development
as commensurate with exploitation of the earth's so-called "natural
resources". Churches are being called upon to oppose with their
prophetic voices such labeling of the holy creation as mere "natural
resources".

The statement points out that it is a debt owed
primarily by industrialized countries in the North to countries of the
South on account of historical and current resource-plundering,
environmental degradation and the dumping of greenhouse gases and toxic
wastes.

In its call for action the statement urges WCC
member churches to intervene with their governments to drastically
reduce greenhouse gas emissions and to adopt a fair and binding deal at
the UN climate conference in Copenhagen in December 2009, in order to
bring the CO2 levels down to less than 350 parts per million (ppm).

Additionally the statement calls upon the
international community to ensure the transfer of financial resources
to countries of the south to refrain from oil drilling in fragile
environments. Further on, the statement demands the cancellation of the
illegitimate financial debts of the southern countries, especially for
the poorest nations as part of social and ecological compensation.

In a 31 August hearing on "ecological debt" during
the WCC Central Committee meeting in Geneva, Dr Maria Sumire Conde from
the Quechua community of Peru shared some ways that the global South
has been victimized by greed und unfair use of its resources. In the
case of Peru, Sumire said mining has had particularly devastating
effects, such as relocation, illness, polluted water,and decreasing
biodiversity.

The concept of ecological debt has been shaped to
measure the real cost that policies of expansion and globalization have
had on developing nations, a debt that some say industrialized nations
should repay. Dr Joan Martinez Alier, a professor at the Universidad
Autònoma de Barcelona in Spain, said climate change, unequal trade,
"bio-piracy", exports of toxic waste and other factors have added to
the imbalance, which he called "a kind of war against people around the
world, a kind of aggression."

Martinez went on saying: "I know these are strong
words, but this is true." He beseeched those present, at the very least
not to increase the existing ecological debt any further.

The WCC president from Latin America, Rev. Dr Ofelia
Ortega of Cuba, said ecological debt was a spiritual issue, not just a
moral one. "The Bible is an ecological treatise" from beginning to end,
Ortega said. She described care for creation as an "axis" that runs
through the word of God. "Our pastoral work in our churches must be
radically ecological," she said.

Planet Ark reported that Dr. Boris Worm of Dalhousie University and colleagues are publishing a paper in Science that suggests world fisheries may avoid a total global collapse by using proven management tools in both the developed countries and the developing countries. This is notable because Dr. Worm had predicted total global collapse of fish
and seafood populations by 2048. But, the effort will require rebuilding 63 percent of fish stocks worldwide and applying proven management tools not only to the ecosystems primarily affected by developed countries, but also those primarily affected by developing countries. These management tools include: restrictions on gear like nets so
that smaller, younger fish can escape; limits on the total allowable
catch; closing some areas to fishing; certifying fisheries as
sustainable; offering shares of the total allowable catch to each
person who fishes in a specified area. Researchers indicated that fishing limits must be set well below the
maximum sustainable yield, which is the highest
number of fish that can be caught in an area without hurting the
species' ability to reproduce. Maximum sustainable yield should be an
absolute upper limit, rather than a target that is frequently exceeded.

Worm's optimism was
provisional, because the current research only looked at about
one-quarter of the world's marine ecosystems, mostly in the developed
world where data is plentiful and management can be more readily monitored and
enforced. Of the 10 major ecosystems studied, scientists
found five marine areas had cut the average percentage of fish they
take, relative to estimates of the total number of fish. Two other
ecosystems were never overexploited, leaving three areas overexploited. The
fisheries in the study were the Iceland Shelf, Northeast U.S. Shelf, North
Sea, Newfoundland-Labrador Shelf, Celtic-Biscay Shelf, Baltic Sea,
Southern Australia Shelf, Eastern Bering Sea, California Current, and New
Zealand Shelf.

Strict fisheries management in the developing world has put increasing pressure on fisheries controlled by developing countries, particularly African countries that struggle to provide food for their populations. To deploy effective fisheries management globally will require addressing the management capacity and governance problems of developing countries and reducing the poverty that makes effective management and governance so difficult.

As this report on the new studies published in Nature indicates, the global warming problem is and always has been understood to be a matter of the total loadings of GHG emissions in the atmosphere, not a matter of timing. The timing of the GHG emissions only matters over the course of centuries because eventually greenhouse gases emitted into the atmosphere decompose. I don't think that anyone familiar with climate policy has ever believed otherwise. So, on that score the new studies are not new, but they may alter how the problem is conceptualized for policy purposes.

Policy cannot simply divide the total allowable emissions among nations and be done with it. First, absent intermediate goals tied to deadlines, countries cannot monitor each others compliance with reduction targets. Second, it creates a tendency for nations to believe that they can just wait until 2050 or whatever when technology will save them and voila they will become carbon neutral. Our experience in the Clean Air Act attainment with NAAQS was that, faced with a deadline and no requirement for annual progress, states just planned to do something at the last moment and when their plans didn't work, they threw up their hands and said, "OH well."

We cannot afford to use that model of regulation with respect to climate. Instead, we need to use technology-forcing technology based standards (e.g. no new coal plants without CSS; CSS retrofit for existing fossil-fuel plants by 2020) along with streamlining the ability of renewables to come online and planning ala the 1990 Clean Air Act amendments with annual progress requirements and contingency measures built into the plan. Those approaches would be far more successful than the "consume up to the last moment" strategy that may be encouraged by the total emissions approach.

Lawyers have to leave science to the scientists and use extreme care when they are working on a cross-disciplinary basis. But scientists need to be just as wary of providing policy concepts unencumbered by an understanding of past performance of various regulatory approaches.

Scientists hope a new approach to assessing carbon build-up in the atmosphere willsimplify issues for policymakers and economists. Two papers published in Nature today (29 April) show that the timings of carbon emissions are not relevant to the debate — it is the total amount of carbon dioxide emitted over hundreds of yearsthat is the key issue.

Rather than basing negotiations on short-term goals such as emission rates by a given year, the researchers say the atmosphere can be regarded as a tank of finitesize which we must not overfill if we want to avoid a dangerous temperature rise.

Climate policy has traditionally concentrated on cutting emission rates by a givenyear, such as 2020 or 2050, without placing these goals within the overall contextof needing to limit cumulative emissions.

Both papers analyse how the world can keep the rise in average surface temperaturesdown to no more than two degrees Celsius above pre-industrial levels. This figure iswidely regarded as the threshold beyond which the risk of dangerous climate changerapidly increases. Policymakers around the world have adopted this limit as a goal.

The first study, led by Myles Allen from the University of Oxford, UK, found thatreleasing a total of one trillion tonnes of carbon dioxide into the atmospherebetween 1750 and 2500 would cause a "most likely" peak warming of two degreesCelsius. Emissions to 2008 have already released half of this. Allen said in a press briefing this week (27 April): "It took 250 years to burn thefirst half trillion tonnes and, on current predictions, we'll burn the next halftrillion in less than 40 years."

The second study, led by Malte Meinshausen at the Potsdam Institute for ClimateImpacts Research, Germany, used a computer model to demonstrate that to avoidexceeding two degrees Celsius by 2100, cumulative carbon emissions must not exceed0.9 trillion tonnes. "We have already emitted a third of a trillion in just the past nine years,"Meinshausen says.

David Frame, a co-author of the Allen paper and researcher at the University ofOxford, said that these findings make the problem "simpler" than it's oftenportrayed. "[The findings] treat these emissions ... as an exhaustible resource. Foreconomists, this way of looking at the problem will be a huge simplification," Framesaid. "Basically, if you burn a tonne of carbon today, then you can't burn it tomorrow" you've got a finite stock. It's like a tank that's emptying far too fastfor comfort. If country A burns it, country B can't. It forces everyone to considerthe problem as a whole."

In a separate essay, Stephen Schneider of the Woods Institute for the Environment atStanford University in the United States, discusses what a world with 1,000 partsper million of carbon dioxide in its atmosphere might look like.

This article is reproduced with kind permission of theScience and Development Network (SciDev.Net).For more news and articles, visit www.scidev.net.

Abstract

Global efforts to mitigate climate change are guided by projections of future temperatures1.
But the eventual equilibrium global mean temperature associated with a
given stabilization level of atmospheric greenhouse gas concentrations
remains uncertain1, 2, 3, complicating the setting of stabilization targets to avoid potentially dangerous levels of global warming4, 5, 6, 7, 8.
Similar problems apply to the carbon cycle: observations currently
provide only a weak constraint on the response to future emissions9, 10, 11.
Here we use ensemble simulations of simple climate-carbon-cycle models
constrained by observations and projections from more comprehensive
models to simulate the temperature response to a broad range of carbon
dioxide emission pathways. We find that the peak warming caused by a
given cumulative carbon dioxide emission is better constrained than the
warming response to a stabilization scenario. Furthermore, the
relationship between cumulative emissions and peak warming is
remarkably insensitive to the emission pathway (timing of emissions or
peak emission rate). Hence policy targets based on limiting cumulative
emissions of carbon dioxide are likely to be more robust to scientific
uncertainty than emission-rate or concentration targets. Total
anthropogenic emissions of one trillion tonnes of carbon (3.67 trillion
tonnes of CO2), about half of which has already been emitted
since industrialization began, results in a most likely peak
carbon-dioxide-induced warming of 2 °C above pre-industrial
temperatures, with a 5–95% confidence interval of 1.3–3.9 °C.

Department of Physics, University of Oxford, OX1 3PU, UK

Smith School of Enterprise and the Environment, University of Oxford, OX1 2BQ, UK

Table of Contents - February 23rd - 27th

ENVIRONMENTAL LAW CASES

• US v. Holden
• Sierra Club v. EPA
• Am. Farm Bureau Fed. v. EPA

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U.S. 6th Circuit Court of Appeals, February 24, 2009US v. Holden, No. 07-5573, 07-5574
Defendants' conviction for impeding an EPA investigation was affirmed,
where the District Court did not abuse its discretion by excluding
evidence of a witness's drug use that did not clearly affect his
ability to recall events. Read more...

U.S. 6th Circuit Court of Appeals, February 26, 2009Sierra Club v. EPA, No. 07-4485
A petition for review of the EPA's decision not to object to a power
plant's air-pollution permit is denied where the EPA may alter its
position about a power plant's compliance with the Clean Air Act based
on intervening events. Read more...

U.S. D.C. Circuit Court of Appeals, February 24, 2009Am. Farm Bureau Fed. v. EPA, No. 06-1410
Petition for review of EPA air quality standards is granted in part and
denied in part, where the EPA failed to adequately explain why its fine
particulate matter standard was "requisite to protect the public
health" under 42 U.S.C. section 7409(b)(1). Read more...

Table of Contents - February 9-13th

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U.S. 4th Circuit Court of Appeals, February 13, 2009Ohio Valley Env't Coalition v. Aracoma Coal Co., No. 071355
In challenge to the Army Corps of Engineers' issuance of permits
allowing the filling of West Virginia stream waters in conjunction with
area surface coal mining operations, grant of judgment in favor of
plaintiffs is reversed and remanded where: 1) the Corps did not act
arbitrarily or capriciously in determining the scope of its National
Environmental Policy Act analysis; 2) findings regarding stream
structure and function, mitigation, or cumulative impacts were not an
"abuse of discretion" or "not in accordance with law," 5 U.S.C. section
706(2) (2000); 3) Combined Decision Documents issued with each permit
included substantial analysis and explanation about the Corps' impact
findings which were within the agency's special expertise and were
based on Corps staff's best professional judgment; 4) compensatory
mitigation plans contained in the CDDs for the challenged permits were
sufficient both for purposes of satisfying the Corps' requirements
under the Clean Water Act and ! for justifying issuance of a mitigated
finding of no significant impact under NEPA; 5) Corps did not act
arbitrarily or capriciously in conducting its required cumulative
impact analysis; 6) stream segments, together with the sediment ponds
to which they connect, are unitary "waste treatment systems," not
"waters of the United States," and the Corps' did not exceed its
section 404 authority in permitting them; 7) plaintiff's stream
segments claim was not barred by principles of res judicata; and 8)
Corps' interpretations of its authority was reasonable in light of the
CWA and entitled to deference. Read more...

U.S. 7th Circuit Court of Appeals, February 13, 2009Friends of Milwaukee v. Milwaukee Metro. Sewerage Dist., No. 081103
In a citizens' suit against defendant-sewer district under the Federal
Water Pollution Control Act (Clean Water Act) alleging that certain
sanity sewer overflows that occurred were violations of defendant's CWA
permit and of the CWA itself, dismissal of plaintiffs' suit is affirmed
over claims that: 1) the district court violated court mandate by not
"considering and giving due weight to post-stipulation violations of
the Act; 2) had the district court considered post-stipulation events
it would have had no choice but to find that the 2002 Stipulation did
not constitute diligent prosecution by Wisconsin Department of Natural
Resources (WDNR); and 3) the district court erred by refusing to admit
and consider the letter from the EPA to the WDNR. Read more...

U.S. D.C. Circuit Court of Appeals, February 13, 2009Hill v. Gould, No. 07-5026
Denial of an application to recover appellant's attorney's fees and
expenses under the Equal Access to Justice Act, brought after she won a
lawsuit against the Secretary of the Interior, is affirmed where the
Secretary's position at the merits stage was substantially justified. Read more..

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Table of Contents - March 16-29th

ENVIRONMENTAL LAW CASES

• Trout Unlimited v. Lohn
• Natural Resources Def. Coun. v. EPA

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U.S. 9th Circuit Court of Appeals, March 16, 2009Trout Unlimited v. Lohn, No. 07-35623
In a challenge to a National Marine Fisheries Service (NMFS) regulation
distinguishing between natural and hatchery-spawned salmon and
steelhead when determining the level of protection each species should
receive under the Endangered Species Act, the majority of District
Court's rulings are affirmed where NMFS decisions were not arbitrary,
but reversed where summary judgment to Plaintiff was erroneous. Read more...

U.S. D.C. Circuit Court of Appeals, March 20, 2009Natural Resources Def. Coun. v. EPA, No. 07-1151
Petitioner's petition for review of EPA air quality regulations is
denied, where: 1) Petitioner failed to object to the EPA's definition
of "natural event" during the rulemaking process; and 2) the preamble
to the regulations was not a final agency action, and thus was not
reviewable under the Clean Air Act. Read more...

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U.S. 3rd Circuit Court of Appeals, March 11, 2009Am. Bird Conservancy v. Kempthorne, No. 07-4609
In an action involving environmental rulemaking, dismissal of
plaintiff's complaint for lack of subject matter jurisdiction is
affirmed where the challenge to the denial by the Fish and Wildlife
Service to undertake an emergency rulemaking listing the red knot
species of bird endangered, is rendered moot by the publication of the
warranted but precluded by higher priority listing in the periodic
Candidate Notice of Review. Read more...

U.S. 5th Circuit Court of Appeals, March 12, 2009Dallas v. Hall, No. 08-10890
In an action by a city against the Fish & Wildlife Service based on
the agency's establishment of a conservation easement on the city's
land, summary judgment for Defendant is affirmed, where the FWS
considered a reasonable range of alternatives before creating the
easement, and was not required to consider the impact on a potential
water source. Read more...

U.S. 8th Circuit Court of Appeals, March 12, 2009Hempstead County Hunting Club v. Southwestern Electric Power , No. 08-2613
In an environmental action, appeal of a denial of a preliminary
injunction to halt preconstruction activities for defendant's failure
to obtain the permit required by the Clean Air Act is dismissed as moot
where defendant has since received the Clean Air Act permit and
lawfully begun construction at the site. Read more...

U.S. 9th Circuit Court of Appeals, March 10, 2009Washington v. Chu, No. 06-35227
In an action by the state of Washington against the Department of
Energy for violation of hazardous waste management regulations, summary
judgment for Plaintiff is affirmed, where the Washington Hazardous
Waste Management Act plainly exempts designated nuclear waste from the
storage and land-disposal prohibitions "with respect to WIPP" only. Read more...

Supreme Court of California, March 09, 2009State of California v. Allstate Ins. Co. , No. S149988
In an action arising from efforts to obtain insurance coverage for
property damage liability imposed in a federal lawsuit as a result of
discharges from a hazardous waste disposal facility, grant of
defendant's motion for summary judgment is reversed where: 1) triable
issues of fact exist as to whether the 1969 overflow fell within the
meaning of the absolute pollution exclusion for watercourses contained
in the insurance policy; 2) evidence the State should have known
flooding was likely is insufficient to prove as an undisputed fact that
the waste discharge in 1978 due to flooding was expected and therefore
nonaccidental; and 3) there is a triable issue as to whether the cost
of repairing the property damage from the 1969 and 1978 discharges can
be quantitatively divided among the various causes of contamination. Read more...

California Appellate Districts, March 11, 2009People v. Tri-Union Seafoods, LLC, No. A116792
In an action involving food warnings, trial court's ruling for the
defendant is affirmed where substantial evidence supports the trial
courts finding that methylmercury is naturally occurring in canned tuna
and thus defendants and other tuna companies are exempt from the
warning requirements of Proposition 65. Read more...

Table of Contents - March 2 - 8th

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U.S. Supreme Court, March 03, 2009

Summers v. Earth Island Inst., No. 07-463
In an action challenging Forest Service regulations exempting certain
land management activities from the agency's review process, an
injunction against the regulations is reversed where Plaintiffs lacked
standing to challenge the regulations absent a live dispute over a
concrete application of those regulations. Read more...

U.S. 1st Circuit Court of Appeals, March 05, 2009Martex Farms, S.E. v. US EPA, No. 08-1311
Final decision and order of the Environmental Appeals Board holding
plaintiff liable for violations of the Federal Insecticide, Fungicide,
and Rodenticide Act is affirmed where: 1) there is no legal basis for
plaintiff's argument that the EPA's enforcement action amounted to
selective prosecution; 2) plaintiff's claim that it was deprived of a
full and fair opportunity to present its case fails as the denial of
its motion to depose four witnesses was justified; and 3) there is no
evidence that there is any basis for reversal as to the substantive
violations committed by plaintiff. Read more...

U.S. 8th Circuit Court of Appeals, March 06, 2009Izaak Walton League of Am., Inc. v. Kimball , No. 07-3689
In an action involving the Boundary Waters Canoe Area Wilderness Act,
district court's grant of defendant's motion for summary judgment is
affirmed where: 1) plaintiff's claims that the Forest Service violated
the Act are time barred by the six year statute of limitations in the
Act; and 2) there is no appellate jurisdiction over the appeal of the
district court's order remanding the matter to the Forest Service to
prepare an environmental impact statement assessing the sound impact of
the proposed snowmobile trail. Read more...

U.S. 9th Circuit Court of Appeals, March 05, 2009Latino Issues Forum v. EPA, No. 06-71907
In a petition for review of the EPA's approval of a state air-pollutant
reduction program, the petition is denied where the EPA acted lawfully
under 42 U.S.C. section 7509(d)(2) by not requiring implementation of
"all feasible measures" into the program. Read more...

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One of the joys of blogging is all the good news that various organizations share with bloggers. However, here's a story that isn't such good news, but needs to be told. Joaquin Sapien of Propublica, which does public interest journalism, wrote this story about the dangers of hazardous chemicals such as perchlorate in baby formula:

CDC Study Finds Rocket Fuel Chemical in Baby Formula

Perchlorate,
a hazardous chemical in rocket fuel, has been found at potentially
dangerous levels in powdered infant formula, according to a study [1] by
a group of Centers for Disease Control scientists. The study, published
last month by The Journal of Exposure Science & Environmental
Epidemiology, has intensified the years-long debate about whether or
how the federal government should regulate perchlorate in the nation’s
drinking water.

According to the CDC, perchlorate exposure can damage the thyroid,
which can hinder brain development among infants. For nearly a decade,
Democratic members of Congress, the Department of Defense, the White
House and the Environmental Protection Agency have been fighting about
how much perchlorate in water is too much.

In the new study, CDC scientists tested 15 brands of infant formula
and found perchlorate in all of them. The names of the brands weren’t
revealed because the CDC says the study "was not designed to compare
brands." But the study does say that the formulas with the highest
perchlorate levels are the most popular. The most contaminated brands
were lactose-based as opposed to soy-based and accounted for 87% of the
infant formulas on the market in 2000, the latest data available from
the U.S. Department of Agriculture.

The study points out that when perchlorate-contaminated powdered
formula is mixed with water that also contains traces of the chemical,
as many drinking water sources around the country do, the final
concoction can become particularly harmful to babies.

"As this unprecedented study demonstrates, infants fed cow’s milk-
based powdered formula could be exposed to perchlorate from two sources
– tap water and formula. That suggests that millions of American babies
are potentially at risk," said Anila Jacob, a physician and a senior
scientist with Environmental Working Group, a Washington, D.C.,
nonprofit that posted the study [2] on its Web site.

In December the EPA released an interim health advisory [3]
suggesting that water with a level of perchlorate limited to 15 parts
per billion (ppb) is safe to drink.The level is not an enforceable
standard, but is meant to provide guidance to states and local
governments seeking to develop their own regulations.

Keeping perchlorate beneath that level would ensure that the amount
of daily oral exposure would remain beneath a threshold called a
reference dose, the EPA said. That is the amount of perchlorate humans
could consistently consume over the course of a lifetime without
increasing their risk of harm. Environmentalists argue that the EPA
reference dose is too high.

The CDC study found that, hypothetically, 54% of infants consuming
the perchlorate-contaminated formula would exceed EPA’s reference dose,
if the formula were mixed with water containing perchlorate at 4 ppb.

Perchlorate has been found at that level in drinking water sources
of at least 26 states and two territories, according to a study the CDC
referenced in the report.

Perchlorate’s effect on individual infants will vary, the CDC
scientists said, according to their weight and the amount of iodine in
their diet.Iodine can counteract the harmful effects of perchlorate and
is an ingredient in many brands of baby formula, the scientists said.

In a statement sent to reporters last night, Sen. Barbara Boxer,
chair of the Environment and Public Works committee, said the study
prompted her to ask the Food and Drug Administration to inform the
public "how best to protect children from perchlorate." As she has done
in the past, Boxer called on the EPA to "overrule the Bush
Administration’s policy which was to walk away from setting a safe
drinking water standard for perchlorate in our water supply."

In 2002 the EPA suggested limiting the amount of perchlorate in water to 1 ppb, but in December [3] it changed that level to 15 ppb to the dismay of environmental advocates.

A March 2008 Government Accountability Office report criticized the Bush White House [4]
for injecting politics into the EPA’s chemical risk assessment of
perchlorate and other toxins.The report suggested that the White House
Office of Management and Budget was stalling the completion of risk
assessments by forcing scientists to respond to comments from other
federal agencies, including the Department of Defense. The report notes
that tight restrictions on perchlorate and other toxins would greatly
increase safety and cleanup costs incurred by the Defense Department
and its contractors.The Perchlorate Information Bureau, an industry
trade group supported by Lockheed Martin, Aerojet and other defense
contractors, said the cost of an overly restrictive perchlorate
standard would be "potentially staggering [5]."

Perchlorate has been found leaching into public water wells from military bases and bomb-building facilities, especially in California [6].

Less than two weeks before the Bush administration left office, the EPA announced that it would delay its long-awaited decision [7]
on whether to set a drinking water standard for perchlorate until the
National Academy of Sciences weighed in on the issue.That announcement
effectively punted the decision to current EPA Administrator, Lisa
Jackson, who promised to regulate perchlorate at her confirmation
hearing.

As we reported previously [8],
when Jackson headed the New Jersey Department of Environmental
Protection, state scientists urged her to regulate perchlorate, which
was found at 4 ppb in six of 123 public water wells [9] (p. 41) in New Jersey in a 2005 survey.New Jersey still does not have a perchlorate standard.

Other states however, have stepped in to fill the regulatory
void.California has set a perchlorate standard at 6 ppb and
Massachusetts at 2 ppb.

As pressure to regulate perchlorate has mounted, so too has lobbying
from the chemical manufacturing and defense industries. In February
David Corn reported for Mother Jones [10] that these industries have hired a former Democratic senator from Nevada to stymie efforts to regulate the chemical.

An EPA spokesperson said in an email to ProPublica today that the
agency is reviewing the Bush administration’s work and "hopes to
announce our direction soon."

"Perchlorate exposure is a serious issue," the email said, "and it’s
a top priority for Administrator Jackson, who is concerned about its
health effects on children."

New Congressional Legislation: Strong support for drinking water andsanitation continues on Capitol Hill, where legislation introduced inthe Senate would put the U.S. in the lead among governments inresponding to the Millennium Development Goals for water and sanitation.Companion legislation is expected soon in the House. Titled "The SenatorPaul Simon Water for the World Act of 2009" (S624), the bipartisan billintroduced by Senators Durbin, Corker and Murray on March 17 seeks toreach 100 million people with safe water and sanitation by 2015 and tostrengthen the capacity of USAID and the State Department to carry outthe landmark Senator Paul Simon Water for the Poor Act of 2005.

USAID: Dozens of USAID missions, notably in Sub-Saharan Africa andSoutheast Asia, are gearing up to utilize increased appropriations toimplement the Senator Paul Simon Water for the Poor Act, after years oflacking the tools to help extend safe, sustainable water, sanitation andhygiene. USAID this past month announced a number of initiativesincluding: new strategic partnerships to extend water and sanitationaccess to the urban poor in Africa and the Middle East (withInternational Water Association), new multilateral revolving funds (inthe Philippines), new collaborations (with Rotary International) and anew USAID Water Site http://tinyurl.com/newUSAIDwater.

Appropriations: Through the recently passed Omnibus legislation,Congress appropriated $300 million for Fiscal Year 2009, for "water andsanitation supply projects pursuant to the Senator Paul Simon Water forthe Poor Act of 2005." As with last year's appropriations, forty percentof the funds are targeted for Sub-Saharan Africa. Priority will remainon drinking water and sanitation in the countries of greatest need.Report language suggests increased hiring of Mission staff withexpertise in water and sanitation. It also recommends that $20 millionof the appropriation be available to USAID's Global Development Allianceto increase its partnerships for water and sanitation, particularly withNGOs.

In Fiscal Year 2010, a broad spectrum of U.S. nonprofit organizations,corporations and religious organizations are urging $500 million toimplement the Senator Paul Simon Water for the Poor Act, as part of anoverall increase of foreign development assistance, a level also calledfor by InterAction and the "Transition to Green" Report.

Above you'll find the Recovery.gov image of where the $819 billion stimulus money is going. Below is the CBO's analysis, with graphics by the Washington Post. Clicking on either image will pop-up a full-size image.

I'm not a big fan of paying for PDFs, but here's a resource that students of the Columbia River salmon litigation should be aware of.
CBB link If you're not familiar with CBB, go take a look. You can sign up for their free weekly newsletter and you can subscribe to their archives.

Salmon and Hydro

An Account of Litigation over Federal Columbia River Power System Biological Opinions for Salmon and Steelhead, 1991-2009

First Edition, February 2009

A NOAA
Fisheries "biological opinion" is the federal government's
primary guide for recovering13 species of Columbia River Basin salmon
and steelhead listed under the Endangered Species Act . A "BiOp" must
insure that these ESA-listed fish survive and thrive in
the Columbia/Snake River Basin hydropower system . Yet, since the first
salmon ESA-listings in 1991, these biological opinions have been the
subject of continual litigation. It is in federal court where one sees
most clearly the divisions and difficulties of Columbia Basin salmon
recovery. This issue summary offers a historical account of this
continual litigation since the first ESA listings and summarizes the
major issues that have dominated Columbia Basin Salmon recovery since
1991.

Salmon and Hydro: An Account of Litigation over Federal
Columbia River Power System Biological Opinions for Salmon and
Steelhead, 1991-2009, a 77-page document in an easy-to-read Adobe PDF format,is available for digital download through our secure payment system. Price: $19.95

Sometimes its a good idea to stand back and contemplate the universe. Today's early news that the Dow Jones Industrial Index took another header because of AIG's $60+ billion loss prompts me to do that. What is the vector of our society? What will it look like after all the dust has settled? It is not just the financial crisis that prompts me to contemplate this. Although the phrase is over-used, we are in the midst of a perfect storm -- a global economy that creates and distributes goods and services through the internet, computerized machines and cheap labor virtual collapse of the financial system, the advent of peak oil, and the climate crisis. How will all of these things cumulatively affect our future?

We've lived with the first problem for decades now -- what do people do as they become less and less important to production of goods and services. The science fiction of our times: what happens when people and their primary asset, labor, becomes virtually superfluous. Certainly countries with high labor costs relative to Asia and South America already are beginning to experience the problem. Computerized machines can plant, water, and harvest the fields; robots can make the cars and prefabricated housing; department stores, bank branches, car dealers, even retail grocery stores can be replaced by internet marketing; 100 law professors lecturing to law students and 1000 college professors lecturing to college students is more than enough -- creating the prospect of a British or continental education system, with those professors raised to unseemly heights and the remainder left to do the grunge work of tutors; even more radically, 100 K-12 teachers can teach a nation of students with computer graded exams, if we believe that convergent answers are the goal of education; priests and ministers can be replaced by TV showmen and megachurch performers.

So what do the other 6.95 billion of us do? Now, we consume. Voraciously. If we don't, then the basics can be provided by a very few and the rest of us become unwanted baggage. A non-consumer is a drag on the system. We depend on the velocity of money, excess consumption, and inefficiency to provide each of us with a job and to maintain the current economy.

And what happens when money moves at a crawl, when people stop consuming, when production becomes life-threatening to the planet, and when a key resource for production, oil, reaches the point of no return??? The answer is a new subsistence economy. A new world where a few are need to produce, a few more can consume, and the remainder have no economic role and are left to subsist as best they can.

Admittedly, it will be subsistence at a higher level -- through the internet, computerization, and technology, each of us will have the capacity to do things for ourselves that are beyond the imagination of today's impoverished subsistence farmers. But, relative to those who own all of the means of production, a few entertainers (be they basketball players, lecturers, moviestars, or mega-church leaders), and a few laborers (building the machines, computers, the information infrastructure and doing basic and applied research), we will all be poor. Perhaps only relatively and perhaps only in material terms. But poor, living at a subsistence level, consuming food from our own gardens, building our own houses, wearing clothes for function not fashion, educating our own children through the internet, capturing essential power through distributed energy, and buying very little of goods that are bound to be too expensive for most -- probably just computers. It won't necessarily be bad. Perhaps we can refocus on relationships, family, community, art, music, literature, and life, rather than define ourselves in terms of our job and our things. Perhaps we can refocus on spirituality instead of materialism. Who knows? Maybe the new society won't be such a bad thing after all -- at least if we insist that the few who have the privilege of production have a responsibility to share the wealth with the many.

Here's a book review I published in American Scientist about Stephen Trimble's recent book. AmSci link

BARGAINING FOR EDEN: The Fight for the Last Open Spaces in America. Stephen Trimble. xiv + 319 pp. University of California Press, 2008. $29.95.

The strikingly beautiful Utah landscapes Stephen Trimble writes about in Bargaining for Eden—the
craggy Wasatch mountain range, the desolate desert mesas—change subtly
in appearance with each passing moment, as light and shadow dance over
them. The same could be said of the book’s evolving perspective—every
time I thought I understood Trimble’s position regarding the battles
being waged over the precious wild lands that remain in the western
United States, his point of view subtly shifted.

The first part of the book, aptly named “Bedrock,” sets the stage
and sketches the main characters. The citizens of Ogden, Utah, are
fighting billionaire oil magnate Earl Holding, who wants to transform
Snowbasin, a community ski area on Mount Ogden, into a posh resort in
time for the 2004 Winter Olympics. Trimble avoids the temptation to
make this starkly partisan struggle into a morality play, perhaps
because the story doesn’t end happily. Although the local
environmentalists win a few battles, they lose the war, and the majesty
of Mount Ogden is marred by development.

Rather than framing the Snowbasin saga as a tragedy, Trimble deftly
uses it as a device for exploring a far more complicated theme,
addressing himself directly to those who treasure wild land out West.
They yearn for the romance, simplicity, community and connection they
draw from open space and wilderness. Yet they also benefit from the
roads, rural retreat homes and high-tech ski lifts that development
provides. The poles of maximum development and maximum preservation are
extremes at the ends of a continuum. Attaching oneself unthinkingly to
either extreme creates destructive antagonism that severs ties to
people and values on “the other side of the moral mountain.” A better,
more sustainable approach to managing the lands of the West is needed.

The White House has published the "Remarks of President Barack Obama -- Address to Joint Session of Congress" as prepared for delivery on Tuesday, February 24th, 2009. White House link The President called for Congress to send him a cap and trade bill to address climate change and stressed investments in clean energy as the path to America's future. What a difference from last year!

As the President says about the long term investments that are absolutely critical to our economic future:

It begins with energy.

We know the country that harnesses the power of clean, renewable
energy will lead the 21st century. And yet, it is China that has
launched the largest effort in history to make their economy energy
efficient. We invented solar technology, but we’ve fallen behind
countries like Germany and Japan in producing it. New plug-in hybrids
roll off our assembly lines, but they will run on batteries made in
Korea.

Well I do not accept a future where the jobs and industries of
tomorrow take root beyond our borders – and I know you don’t either.
It is time for America to lead again.

Thanks to our recovery plan, we will double this nation’s supply of
renewable energy in the next three years. We have also made the
largest investment in basic research funding in American history – an
investment that will spur not only new discoveries in energy, but
breakthroughs in medicine, science, and technology.

We will soon lay down thousands of miles of power lines that can
carry new energy to cities and towns across this country. And we will
put Americans to work making our homes and buildings more efficient so
that we can save billions of dollars on our energy bills.

But to truly transform our economy, protect our security, and save
our planet from the ravages of climate change, we need to ultimately
make clean, renewable energy the profitable kind of energy. So I ask
this Congress to send me legislation that places a market-based cap on
carbon pollution and drives the production of more renewable energy in
America. And to support that innovation, we will invest fifteen
billion dollars a year to develop technologies like wind power and
solar power; advanced biofuels, clean coal, and more fuel-efficient
cars and trucks built right here in America.

As for our auto industry, everyone recognizes that years of bad
decision-making and a global recession have pushed our automakers to
the brink. We should not, and will not, protect them from their own
bad practices. But we are committed to the goal of a re-tooled,
re-imagined auto industry that can compete and win. Millions of jobs
depend on it. Scores of communities depend on it. And I believe the
nation that invented the automobile cannot walk away from it.

None of this will come without cost, nor will it be easy. But this
is America. We don’t do what’s easy. We do what is necessary to move
this country forward.

Congratulations to all of the participants in the National Environmental Law Moot Court Competition held at Pace University during the last few days. Roughly 70 law schools participated in the competition, which featured a difficult and oft-times confusing problem about salvage of a Spanish shipwreck. The law covered by the problem included admiralty law, administrative law, international law such as the UNESCO treaty and the Law of the Sea, the National Marine Sanctuaries Act, the Endangered Species Act, the Clean Water Act, the Rivers and Harbors Act, the Outer Continental Shelf Lands Act, and for good measure, the Submerged Military Craft Act. Just typing that list makes me tired!

The learning is in participating, but the honors for Best Briefs go to University of Houston, Georgetown, and University of California at Davis, with Houston winning overall Best Brief. The Best Oralist Honor goes to Louisiana State University. The final round of the competition featured Lewis & Clark law school, University of Utah, and Louisiana State. Lewis & Clark prevailed, winning the overall competition for the 2d time in a row. If I recall correctly, that may be the first back to back win. Congratulations to everyone!

The students of Pace University deserve special mention for sacrificing their ability to compete and for running a flawless competition. More details can be found at the NELMCC site.

Carbon
emissions have been growing at 3.5 percent per year since 2000, up
sharply from the 0.9 percent per year in the 1990s..."It
is now outside the entire envelope of possibilities" considered in the
2007 report of the International Panel on Climate Change...The
largest factor is the widespread adoption of coal as
an energy source... "and without aggressive attention
societies will continue to focus on the energy sources that are
cheapest, and that means coal." Past
projections for declines in the emissions of greenhouse gases were too
optimistic, he added. No part of the world had a decline in emissions
from 2000 to 2008.

Anny
Cazenave of France's National Center for Space Studies [reported] that improved satellite measurements show that sea levels are rising
faster than had been expected... Rising
oceans can pose a threat to low level areas such as South Florida, New
York and other coastal areas as the ocean warms and expands and as
water is added from melting ice sheets...And
the rise is uneven, with the fastest rising areas at about 1 centimeter
— 0.39 inch — per year in parts of the North Atlantic, western Pacific
and the Southern Ocean surrounding Antarctica...

The Court (Judges Martin, McKeague, and a District Judge Collier, with Martin writing for a unanimous panel (that lineup and the unanimity is interesting alone to me and I would guess other Sixth watchers)) held that, under Rapanos, the government had jurisdiction over the defendant's wetlands in Kentucky. The Court discussed the Marks-Rapanos problem at length (some fascinating discussion, along with a sharp rebuke of the Pacific Legal Foundation's view that the plurality test controls in a footnote), but did not make a final decision because it decided that jurisdiction was proper under both the plurality and Kennedy tests. The application of the plurality and Kennedy tests was also lengthy and interesting.

Also interesting was this footnote, describing the status of the property in Muhlenberg County, KY. (If you've ever been there, this is pretty accurate.)

"And daddy won’t you take me back to Muhlenberg County / Down by the Green River where Paradise lay / Well, I’m sorry my son, but you’re too late in asking / Mister Peabody’s coal train has hauled it away . . . . / Then the coal company came with the world’s largest shovel / And they tortured the timber and stripped all the land / Well, they dug for their coal ‘til the land was forsaken / Then they wrote it all down as the progress of man . . . .

This link connects to a paper I just posted on SSRN. I presented the paper at the 6th Colloquium of the IUCN International Academy of Environmental Law in Mexico City in November 2008. I am submitting a short version of the paper for possible publication in a book incorporating papers presented at the conference on the theme of Alleviating Poverty and Environmental Protection. And I am preparing a more complete and elaborate version for possible law review publication. I would deeply appreciate your comments on the subject of how we ensure that transnational corporations act in a sustainable manner and the obstacles or concerns with the approach I suggest. SSRN link

Abstract:
Using a recent innovative Oregon sustainable corporation law as a
springboard, this article argues for requiring all transnational
corporations to be chartered as sustainable corporations. Given the
far-reaching effects of their operations and their uniquely powerful
role, the global wealth that has been accumulated in these
organizations must be fundamentally redirected toward creating a
sustainable world. As a privilege of doing transnational business,
transnational corporations should be required to incorporate
environmental and social responsibility into their corporate
charters-the document that sets forth the prime mission of the
corporation and its directors, essentially baking sustainability into
the corporate DNA of transnational corporations.

To
be both effective and to harness the entrepreneurial creativity of
these organizations, the sustainable corporation charter must be
implemented per provisions that require transnational corporations to
develop corporate sustainability strategies in accordance with the
guidance provided by the implementing provisions. The implementing
provisions should also require that the transnational corporations
monitor and report in a standardized manner compliance with the
corporate sustainability strategy, with sustainability-related laws,
and with nonbinding environmental, labor, human rights, corruption, and
other sustainability-related standards.

The sustainable
corporation charter requirement should be imposed as a matter of
international law, through an international convention and administered
by an international commission. The requirements should be directly
applicable to transnational corporations as a condition of doing
transnational business. The commission should be authorized to take
enforcement action directly against the corporation. In addition, both
home and host nations to transnational corporations should agree to
compel the corporations - either incorporated in that nation or doing
business in that nation-to comply with the sustainable corporation
charter requirement as a condition of doing any business. Nations that
fail to join the international convention, or that fail to enforce the
international convention, should be subject to mandatory trade and
other economic sanctions by all signatories to the international
agreement.

We can no longer allow transnational corporations to
aggregate the bulk of societal wealth and then operate in an
environmentally and socially irresponsible manner. The proposals in
this article are one step toward turning transnational corporations
into sustainable corporations.

Here's a source for primary information about Obama's Energy and Environment Directives on the California waiver and the CAFE standards. I searched for this yesterday and couldn't find it -- maybe some of you had the same problem.

Today,
January 27, we posted a lengthy summary of various reactions to President
Obama's Climate Change and Energy Presidential Memos on our eNewsUSA blog at: http://enewsusa.blogspot.com/. The
summaries include links to the full text of the releases. The posting includes
both positive and negative reactions from U.S. Congressional leaders, industry,
environment and government organizations. The posting also includes links to the
full text of the President Obama Memos. Also included, on the January 26
posting, are a summary of President Obama statement on the Memos and links
to the full text and video of the speech and related information. The posting
also includes some clarifications of some misleading reporting and statements
that have been made regarding the President's announcement and the
Memos.

One of my students just published an article on Oregon's battle with takings legislation: David Boulanger, The Battle over Property Rights in Oregon: Measures 37 and 49 and the Need for Sustainable Land Use Planning, 45 Willamette L Rev 313 (2008).

If you have any interest in land use law, how takings law affects the environment or in takings legislation, this article is worth a read.

The energy challenges our country faces are severe and have gone
unaddressed for far too long. Our addiction to foreign oil doesn't just
undermine our national security and wreak havoc on our environment --
it cripples our economy and strains the budgets of working families all
across America. President Obama and Vice President Biden have a
comprehensive plan to invest in alternative and renewable energy, end
our addiction to foreign oil, address the global climate crisis and
create millions of new jobs.

The Obama-Biden comprehensive New Energy for America plan will:

Help create five million new
jobs by strategically investing $150 billion over the next ten years to
catalyze private efforts to build a clean energy future.

Within 10 years save more oil than we currently import from the Middle East and Venezuela combined.

Put
1 million Plug-In Hybrid cars -- cars that can get up to 150 miles per
gallon -- on the road by 2015, cars that we will work to make sure are
built here in America.